Ecclesiastical Minutes of Evidence

Examination of Witnesses (Questions 40-52)



  40. We have also had a very good look at human rights, have we not?
  (Archdeacon of Malmesbury) Yes.

  41. And we have brought this Measure within the framework of human rights and we have Counsel's opinions which say that it is fully in accord with human rights.
  (Archdeacon of Malmesbury) Correct.

  42. My third point is you may be aware that the DTI is looking at employment conditions and there is a consultation document from the Church, but all of the consultation with the DTI deals with civil procedure and the balance of probabilities. There is absolutely no prospect at all of the DTI coming out with some extension of rights which might cover clergy which would be based on the criminal standard, it would be a civil standard.
  (Archdeacon of Malmesbury) That is correct.

Mr Gummer

  43. I wonder whether we ought to look at the history here. What has happened is that clergymen had in the past very important rights, as referring to the parson's freehold. By various mechanisms, some of them overt and some of them covert, that has been very much reduced. Under this legislation I would entirely agree that the bishop, should have significant powers but, as Lord Judd said, those powers do mean that in that sense, if we are talking in tribunal terms, the employer has a significantly bigger role here than would be true in comparable cases. One of the reasons I pressed the earlier point was that this is not parallel with what happens in the world and the Dean of the Arches said, whether we agree with her or not, the reason was that it was very difficult for the Church to do it in that way although Lord Pilkington pointed out that many parallel organisations were able to do it in that way. The situation is that we do not have a parallel with what happens in the world outside. What I am concerned about is that the employer, having this greater degree of power and having reduced the independence of the clergyman, which I think is a sadness as a matter of fact but that is what we have done, we are now proposing that he should have his position reduced still further in these circumstances. I think Lord Campbell is right. It does seem to me that for all kinds of reasons, not least the position of the parson in the parish, that he should, in fact, have to be arraigned in terms in which the case has got to be proved beyond all reasonable doubt rather than the balance of probabilities as agreed by a majority. I think both these things are intolerable. The reason really is that it is wholly against the history of the position of the Church of England which always tried to get a balance between the power of the bishop, or in this case the nexus of the committees that have now replaced the bishop, and the power and independence of the clergyman. I think this Committee would be quite wrong to allow the position of the individual to be so reduced that it would be both contrary to reasonable rights of establishment and his ability to defend his independent position in the parish and contrary to what has historically been the position of the Church of England clergymen. I think it is wholly contrary both historically and traditionally to the position of the priest.
  (Miss Cameron) My Lord, can I just say that I suspect that we may be losing sight to some extent of the process of laying a complaint under this Measure because clause 10(2) deals with the laying of a complaint before the bishop which has to be in writing and 10(3) provides that it has to be accompanied by written particulars of the misconduct and written evidence in support of the complaint be sent to the bishop or archbishop, as the case may be. When that has been received the bishop has to hand it over to the registrar who has to see whether the person making the complaint has a proper interest, which would get rid of the malicious gossip, etc., and then has to decide whether there is sufficient substance in the complaint to justify proceeding at all. Then it goes through for consideration by the bishop, whether conciliation and so forth can deal with the matter. If the bishop forms a view that it really is serious and ought to go through, there is then a formal investigation under clause 17 by the president of the tribunals, that is the lawyer mentioned earlier, the head of the structure, for the purpose of deciding whether there is a case to answer. There are, in fact, two lawyers, the registrar who looks at it in the first place and in the second place the president of the tribunals who looks at it, a completely independent lawyer who decides whether there is a case to answer, and it is only if he finds that there is a case to answer that it then comes before a tribunal. There is a huge analysis of it all before it ever gets to the tribunal stage, which is why the Archdeacon and the Bishop were saying that they are hopeful—they cannot guarantee anything in life, none of us can—that the filtering process which has been introduced here is to protect the clergy all through. It is only if the president of tribunals decides there is a case to answer that then he will set up an independent tribunal, nothing to do with the diocese concerned, and they will then have to consider it. They will then consider it as a disciplinary tribunal looking at misconduct under the terms of this Measure and that is professional misconduct. It is that which is analogous to accountants, to doctors, to dentists, to the police, who have recently gone on to the balance of probabilities; they serve the public, they are prepared to stand up and be counted and be tested by the balance of probabilities. The case which the Archdeacon has been putting is that the clergy sitting beside me, three of them, are all prepared to say, on behalf of their colleagues, "We are prepared to be judged by this standard". If those who are to be affected by the standard which they are asking for in this Measure, supported by the Laity, are coming before this Committee and asking for it, they are doing it because they believe it is right.

Baroness Wilcox

  44. Very good.
  (Bishop of Winchester) I think the point that the Dean of the Arches and Auditor has just made really is very important. The Synod—this is a little bit of obvious history—had no sense that it was doing something unjust to the clergy in going for the civil standard of proof. The Synod decided that the present system which, as the Dean of the Arches has said, speaks of the Assize Court was wholly unsuitable. Having made that decision by which it was absolutely clear the rest follows, I do not think the Synod, and certainly I and various studies or instructions I have had, has any sense that going for a civil burden of proof means that the thing is uncertain or amateur or whatever. I do not think any of that comes into it. The bishop is not the employer. I think the thing I would most want to say, through my Lord Chairman, to Mr Gummer is I think the Synod was also seeking, as has been made clear this afternoon, to hold clear the intention which ultimately is the bishop's legitimate interest and proper interest in the welfare and sustaining and well-being in a professional and spiritual light of the clergy on the one hand, and the responsibility to the public on the other. At that point that has to run through the whole tribunal system too should cases reach that point. The likelihood is that most complaints are of the "the vicar was rude at my baby's baptism" sort. There are all kinds of ways of dealing with this but they will be brought within the Measure rather than left to the bishop's informal discretion. The bishop will still be responsible for their management. A tiny minority will reach the point of tribunal but even at that point the overall intention, the needs of the cleric and the needs of the public, is what I think underlies the present set of proposals.

Lord Elton

  45. I do not want to muddy the waters but what I find difficult about these exchanges is that they could so easily come from the pages of Trollope which is concerned entirely with the clerical members of the Church of England. What we are looking at is a Measure which is designed to enable that body of saintly men and women to minister to the faithful in the parish. Nobody has so far raised the question of how this looks to the complainant. My preliminary question is will the complainant get any advice as to how the system works and the likelihood of getting a decision? If that is the case then it seems to me that that needs to be taken into account when considering what is the appropriate burden of proof. On the one hand we have a burden of proof which means it is really very likely that this did happen so we must assume that it did, and the other is this has quite clearly happened and only somebody who is very unwise would think that it did not happen. Then we come to what is likely to happen in the parish. If the complainant believes that it is an exceedingly difficult test and it will be in the end her word against his, as it were, in a question of inappropriate conduct in a counselling session then the social horrors of losing would make it very unlikely that the case would be brought, I think. If we have this very interesting, as it were, graded balance of probabilities as described so eloquently in the never quoted passage of my noble Lord Chairman's judgment, then the more serious the allegation the more stringent must be the requirement of proof. It seems to me that that is the nearest thing we can get to a proper balance between the interests of the complainant and the interests of the clergyman and, therefore, I feel that probably the Measure is right.
  (Archdeacon of Malmesbury) Can I just say, my Lord Chairman, that the complainant will find it much easier to lay a complaint under this Measure than they would find it to lay a complaint at the present moment in time. It is an incredibly complex process to lay a complaint at the present moment in time and the rules here run to pages of how it is done. All they have got to do is just to write a very simple letter saying "I am concerned about x". At that point they do not even have to give the evidence because they will be asked "could they please justify the cause of concern". It is envisaged in a code of practice that, for example, if you had someone who had difficulty with literacy that provision would be made for someone to write the letter for them if they wish to make a complaint, to enable them to be able to do it. It is envisaged that complainants will be given guidance and help in how they will go about it. If necessary, if they were illiterate, for example, or felt that they had been offended against, they could explain that to someone locally who would write that letter and send it in on their behalf. I have every expectation that although this is not a complainant's charter it undoubtedly makes it much, much easier for a complainant to indicate their concern.

Chairman: Can I add a footnote to what Lord Elton has just said and what the Archdeacon has just said. We are often required to ensure that a procedure is fair to a defendant and that, of course, is very important. But we have also said that, yes, it has got to be fair to the defendant but it has got to be fair to the plaintiff as well. I think underlying Lord Elton's point is that we have got to be fair to the complainant in deciding what the burden of proof should be. I do not know what the Committee feels. But I hope we can deal next with the majority question, the question whether a decision should be unanimous, which is a relatively easy point.

Lord Judd: My Lord Chairman, I accept your ruling on what we must do and I do not want to try your patience but I did just wonder whether we might hear a word on the background thinking to clause 26 because I am interested by this principle that when the issue was being considered of prohibition or deposition the grounds listed are in (a) and (b) and —

Chairman: Sorry, Lord Judd, is that relating to —

Lord Judd: I thought you were going to conclude the proceedings, my Lord Chairman.

Chairman: No, no.

Lord Judd: I beg your pardon.


  46. Before we get to clause 26 I think we ought to deal with the other points on clause 18(3)(b), which is the majority point.
  (Archdeacon of Malmesbury) I look forward to giving Lord Judd guidance.

Lord Campbell of Alloway: I go along with the majority, that is fair enough, but for the reasons I have given—I have listened very carefully to what has been said—I find absolutely no justification in all fairness for any of the views that have been expressed. Therefore, I would stand firm in accordance with your judgment in the House that really you will have to apply, and it would probably be held so on judicial review, Clause 24 with criminal burden on (a) to (d) and civil burden on (e) and (f). With respect to the Committee, you cannot get away from the seriousness of (a) to (d) and the penalties, the types of commission of offence under (a), and then say that any measure of justice has been done, whatever the procedure may be. Procedure is no safeguard for burden of proof.

Chairman: Can I just remind Lord Campbell that the most recent authority is a case called B v. The Chief Constable of Avon Constabulary. The question there arose under the new procedure whereby an application had been made for a order. In that case Lord Bingham said words to the effect: "This is a civil proceeding and therefore the civil burden applies. But sicne the case involves a very serious sexual allegation the civil burden becomes indistinguishable from the criminal burden". If I understand what the Archdeacon and the Dean of the Arches were saying, the flexibility of the civil burden is one which will enable one to apply what is basically a criminal burden in the very serious cases but something which is much less than a criminal burden in the less serious cases. It is really a matter almost of common sense. It does not mean that you have to use the words "criminal burden of proof".

Lord Judd: What some of us are concerned about is although we are told that it will only be in extreme circumstances and very rarely, the possibility exists that the outcome of the proceedings might have an effect upon the individual which is even greater than the effect on somebody who is found guilty in criminal proceedings because their vocation will be taken from them and their whole standing in society will be called into question.

Lord Pilkington of Oxenford: There is another burden that underlies this. You are here not dealing with the Law Lords but you are dealing with a tribunal that to a large extent is an internal tribunal of the Church. I am not disputing that they would behave with utter integrity but when our Lord Chairman talks, he is talking about judges sitting in court and in this case you are dealing with an internal tribunal. The citizen does not have as many protections as his colleagues do who face much less serious offences. When I sacked a teacher and faced an industrial tribunal I did not take away their house or their job.

Mr Marsden

  47. My Lord Chairman, can we not lose sight of the point.
  (Bishop of Winchester) I just wanted to say very briefly, and this is partly in response to Lord Judd's earlier point, that a tribunal of the diocese to the Synod in passing its legislation, is in line with what lay before, which was a diocesan Court. The tribunal has now gone quite outside to a provincial panel for its membership and is not internal to the diocese and thereby has removed this element of the internal and has met the kind of concerns that Lord Pilkington is expressing. I am quite convinced that that is the Synod's view.

Chairman: I think Lord Campbell has said that he would not be too worried about a majority decisions, three out of five. Is anybody worried about that?

Mr Marsden

  48. I specifically raised this issue earlier. I do not have a fixed view on it but along the same lines. It has just been said, for example, that the more serious the charge the closer the judgment must be to the criminal burden of proof. I would like to know what the reasoning and thinking of the Synod was for going down a majority view in the first instance when, as I said before, the evidence or the pattern in the sister Churches at the moment is not conclusive. I think I saw from the Scottish Episcopal Church that it was a unanimous or majority vote. Given the context in which you would be making those decisions, albeit perhaps rarely, I would like to know the thinking as to why the members of the tribunal would not be asked for a unanimous verdict in the first place, particularly when the question of the composition of the tribunal, to which I think Lord Pilkington has just alluded, is different in character and nature from that of lay tribunals.
  (Archdeacon of Malmesbury) My Lord, the present situation is if you get to a Consistory Court, and that is extremely rare, that you have a qualified judge as the Consistory Court's chairman and you have four jurors for want of a better word, two clergy and two laity, from a group, a panel, of 12 laity and 12 clergy elected by the diocesan Synod of that diocese. They are chosen by lots, the four of them, and they alone have the decision. The chair, who is legally qualified, is not involved in making that decision. We move then to a situation where each diocesan Synod would nominate two lay and two clergy to a provincial panel. When a tribunal is required the only people who may not under any circumstances sit on that panel are the members from the diocese concerned. The defendant has the right to object to anyone who is nominated for that panel that they feel are not sufficiently independent. They can complain about all of them. There are steps, first of all, to make sure that the panel of five, which includes a legally qualified chair person, are all people that the defendant is satisfied are independent. Then the five hear the case under the chairmanship of the legally qualified chair and the legally qualified chair is one of those who helps to make the decision, which is completely new. On that basis the original intent was to have a panel of three and those who felt concern about this approached me and said they were less than happy about that. It was the suggestion of those who had a concern in this area—their suggestion, not mine—that they would be happy with a panel of five and a majority but they would not be happy with a panel of three and a majority. We were very content to change it to a panel of five. There was no opposition to that in the General Synod, they felt the balance was right.

Chairman: As a footnote, one can say that even in criminal cases we no longer insist on a unanimous verdict of the jury.

Mr Marsden: That is true, my Lord Chairman, you do not insist upon it but you ask in the first instance, if I am correct, whether the jury could come to a unanimous decision and only subsequently do you accept a majority verdict. The point that I am making is there is a slight difference of emphasis to the whole process where a tribunal is assuming that essentially a majority verdict will do and that effectively means if you are doing some sort of numbers game you have got to get three out of five members of the tribunal to agree. I think that is a rather different perspective from a situation where people go into a tribunal assuming that they will make their best endeavours that all five of them should agree and only if they do not agree do they then subsequently go to the second process. What I am concerned about, and I am afraid the Archdeacon's reply has not convinced me, is that again, given all the draconian aspects we are talking about, the proposal does not sufficiently protect the position of the individual before that tribunal.

Lord Pilkington of Oxenford: Talking of numbers, my Lord Chairman, we have lost our quorum.

Chairman: I know we have. I am afraid we will have to come back again. I think I am right in saying that in Scotland you do not even need 10 out of 12, I think I am right in saying a majority verdict is sufficient.

Mr Marsden

  49. Curiously, according to what we have been given, my Lord Chairman, the Scottish Episcopal Church goes for a unanimous verdict in the first place.
  (Archdeacon of Malmesbury) No, it does not. It can go for either. It would appear that the actual tribunal decides itself which way it is going to go.

Chairman: I fear that we cannot continue any longer.

Lord Elton

  50. Can I just raise a very small point which I should have asked before. It is in clause 8(2) where there is a reference to a minister licensed to serve in a diocese. I do not think I need to declare an interest but I am what is known in the Diocese of Oxford as a licensed lay minister. I would draw to the attention of the Church the possible difficulty of the language there because I am not a clerk in Holy O rders. I think you need a better definition there.
  (Archdeacon of Malmesbury) But it is there in clause 8(1) at the very beginning "archbishop, bishop, priest or deacon". They are the only people being referred to.
  (The Reverend Canon Dexter) You are quite safe.
  (Archdeacon of Malmesbury) You cannot squeeze into this Measure like that.

Lord Campbell of Alloway: Could I raise two very short points?


  51. I think not, Lord Campbell, we are not quorate. We have got to come back. It is a question of when we are going to come back. Before we discuss that, may we at least thank you very much indeed for all the explanations you have given to us today and hope that you will be able to come back again. I think there is not much more that is contentious.
  (Archdeacon of Malmesbury) I am looking forward to giving Lord Judd his answer.

Lord Judd

  52. You know what I am going to ask, do you?
  (Archdeacon of Malmesbury) You have already told us.

Chairman: We need a date in February. I imagine we had better fix that date in the usual way. Thank you.

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